Case management in the context of identifying and reforming undue delay in South Africa civil procedural law

Abstract:

A reform viability test of Van Heerden is utilised to assess the viability of implementing case management to address perceived delay experienced in the South African civil procedural regime. The reform viability test holds that in order for any attempt at reform to be successful, a reform-ethos, being the ideal to which reforms strives, must be identified and said identified reform-ethos must be in line with the reform-need experience by a civil procedural regime. The three elements of the reform viability test of: (i) the reform-need (demarcated in this study to the need to address delay); (ii) the reform-ethos (identified herein as the implicit constitutional right to access to justice) and (iii) the reform options to address delay (the options explored herein being judicial resource approach, delay reductive innovations and case management) are evaluated. The last-mentioned option is investigated with reference to examples of both comprehensive case management regimes (as are evident in English civil procedure and the Federal Court of Australia) and selective case management regimes (as are evident in certain Australian states and territories). The conclusion is reached that, in the correct application of the reform viability test, without a properly identified reform-need it is impossible to postulate either a specified reform-ethos or sensibly assess the viability of any reform option.